Mathis v. Neotti

Filing 7

ORDER of Dismissal. Signed by Judge Edward M. Chen on 8/1/2011. (Attachments: # 1 Certificate of Service)(emcsec, COURT STAFF) (Filed on 8/1/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BENJAMIN SHERMAN MATHIS,

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Petitioner,
v.

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For the Northern District of California

United States District Court

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No. C-11-3345 EMC (pr)

GEORGE NEOTTI, Warden,

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ORDER OF DISMISSAL

Respondent.
___________________________________/

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Benjamin Sherman Mathis, a prisoner incarcerated at the R. J. Donovan Correctional Facility

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in San Diego, California, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. §

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2254. The petition is not his first federal habeas petition concerning his 1988 conviction from the

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Santa Clara County Superior Court. His earlier habeas petition in Mathis v. Marshall, No. C 91-

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20050 SW, was denied on the merits on July 29, 1992.

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A second or successive petition may not be filed in this Court unless the Petitioner first

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obtains from the United States Court of Appeals for the Ninth Circuit an order authorizing this Court

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to consider the petition. 28 U.S.C. § 2244(b)(3)(A). Petitioner Mathis has not obtained such an

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order from the Ninth Circuit. This Court will not entertain a new petition from Petitioner Mathis

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until he first obtains permission from the Court of Appeals for the Ninth Circuit to file such a

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petition. This action is DISMISSED without prejudice to Petitioner Mathis filing a petition in this

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Court after he obtains the necessary order from the Court of Appeals for the Ninth Circuit.

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If Petitioner Mathis wants to attempt to obtain the necessary order from the Ninth Circuit, he
should very clearly mark the first page of his document as a “MOTION FOR ORDER

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AUTHORIZING DISTRICT COURT TO CONSIDER SECOND OR SUCCESSIVE PETITION

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PURSUANT TO 28 U.S.C. § 2244(b)(3)” rather than labeling it as a habeas petition because the

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Ninth Circuit Clerk’s office is apt to simply forward to this Court any document labeled as a habeas

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petition. He also should mail the motion to the Ninth Circuit (at 95 Seventh Street, San Francisco,

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CA 94103), rather than to this Court. In his motion to the Ninth Circuit, he should explain how he

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meets the requirements of 28 U.S.C. § 2244(b).

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Petitioner’s in forma pauperis application is DENIED. (Docket # 6.)

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The Clerk shall close the file.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: August 1, 2011

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_________________________
EDWARD M. CHEN
United States District Judge

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